(March 17, 2008) - The Supreme Court today agreed to decide a case that
will have major impact on free speech over the airwaves. The Court granted
the Federal Communication Commission's request that it review last year's
decision by the U.S. Court of Appeals for the Second Circuit in Fox
Television v. FCC, which struck down the FCC's harsh new "fleeting
expletives" rule.

The "fleeting expletives" rule, first announced in 2004, marked
a change from the agency's previous, less rigid, censorship policy for
"indecency" in broadcasting. Under the new rule, even one use
of a vulgar word during any but late-night hours is presumptively unlawful
and exposes a broadcast station to fines of more than $300,000.

The FCC created the "fleeting expletives" rule when it reversed
its original finding that the rock star Bono's televised exclamation upon
receiving a Golden Globe Award - "this is really, really fucking brilliant"
- did not violate its indecency ban because Bono's use of the "f-word"
did not refer to "sexual or excretory activities or organs." Announcing
its new, harsher rule, the commissioners now said that any variant of
the "f-word" inherently has a sexual connotation. The about-face came
in the wake of national uproar over the Janet Jackson "wardrobe malfunction"
during the 2004 Super Bowl half-time show just a month earlier.

The FCC soon announced an exception to its new rule, however. After the
film Saving Private Ryan was broadcast on television, the agency
said the film's pervasive cursing was "in context, not patently offensive,"
and was necessary for the artistic message; therefore, it was not indecent.
But in an "Omnibus Order" released in March 2006, the FCC refused to apply
the "Saving Private Ryan exception" to a documentary on the Blues,
directed by Martin Scorsese and broadcast on PBS stations, because the
commissioners thought Scorsese should have substituted politer words for
the actual language of the musicians and others interviewed.

In the "Omnibus Order," the commission also found that Detective
Sipowitz's use of the term "bullshit" on NYPD Blue was indecent
and profane - though not his use of the word "dickhead." And in the two
cases that were at issue before the Second Circuit, the agency condemned
as indecent the phrase "Fuck 'em" (uttered by Cher during the 2002 Billboard
Music Awards), and a comment by Nicole Richie during the same program
the following year: "Have you ever tried to get cow shit out of a Prada
purse? It's not so fucking simple."

The Second Circuit, in a 2-1 decision, found that the "fleeting expletives"
rule is "arbitrary and capricious," in violation of the federal Administrative
Procedure Act, because the FCC gave no reasoned rationale for its change
from a policy of censoring expletives such as "fuck" or "shit" only when
they are pervasive in a radio or TV broadcast.

The most important part of the Second Circuit decision, however, was
lengthy "dicta" (that is, statements not necessary to the result in the
case). Warning the FCC not to simply invent additional rationales for
its anti-indecency rules, Judges Rosemary Pooler and Peter Hall opined
that the agency's entire censorship scheme is likely unconstitutional:
its standards are too discretionary; and, given the pervasiveness of the
words "fuck" and "shit," and their many variants, in contemporary society,
it would not likely be able to show a "compelling state interest" in censoring
them.

It was largely this "dicta" that the FCC pointed to in its
petition asking the Supreme Court to review the case. The FCC argued that
it could no longer do its job since the Court of Appeals had basically
said that any new rule it came up with would probably be unconstitutional.
The agency pointed to the Supreme Court's 1978 decision in FCC v. Pacifica
Foundation, which approved its censorship of broadcast indecency.
The FCC argued that that the Court of Appeals basically deprived it of
the discretion to decide what is "indecent," in context, which
the Supreme Court gave it 30 years ago in Pacifica.

The Pacifica case involved comedian George Carlin's "Filthy
Words" monologue, a satirical look at linguistic taboos which made
repeated use of vulgar words. In a narrow and fractured ruling, the Supreme
Court in Pacifica said that the FCC could censor constitutionally
protected but indecent speech on the airwaves because radio and TV invade
the home before people have time to turn off the set, and vulgar language
could enlarge a child's vocabulary "in an instant."

It is unclear whether the justices who voted to grant review in this
case want to affirm the FCC's new, harsher approach to censoring "indecency,"
or, alternatively, to revisit the Court's 1978 Pacifica decision.
Among the arguments made by Fox Television and others who challenged the
FCC's fleeting expletives rule was that the media landscape has changed
so much since 1978 that broadcasting is no longer distinguishable from
cable and other technologies that enjoy full First Amendment protection.

The Second Circuit agreed, noting also that ten years ago in Reno
v. ACLU, the Supreme Court struck down an indecency ban for the Internet
which used the same terms as the FCC's indecency definition: "patently
offensive as measured by contemporary community standards." The Second
Circuit said that the standard is hopelessly vague, and that the FCC's
frequent flip-flops made it unpredictable, with resulting chilling effects
on valuable programming.

On June 27, 2011, the Supreme Court granted the government's petition for review of that ruling, as well as another Second Circuit decision that struck down an indecency finding against "NYPD Blue" for showing a few moments of female nudity. On June 21, 2012, the Court vacated the FCC's orders on narrow due process grounds, without reaching the First Amendment issues. See The FCC and Indecency: The Supreme Court Decides Not to Decide.

The Free Expression Policy Project began in 2000 to provide empirical research and policy development on tough censorship issues and seek free speech-friendly solutions to the concerns that drive censorship campaigns. In 2004-2007, it was part of the Brennan Center for Justice at NYU School of Law. The FEPP website is now hosted by the National Coalition Against Censorship. Past funders have included the Robert Sterling Clark Foundation, the Nathan Cummings Foundation, the Rockefeller Foundation, the Educational Foundation of America, the Open Society Institute, and the Andy Warhol Foundation for the Visual Arts.

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